VAN SELM & ORMSBY v VAN SELM & ORMSBY [2015] NZHC 2139

VAN SELM & ORMSBY v VAN SELM & ORMSBY [2015] NZHC 2139 [4 September 2015]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2014-419-000170[2015] NZHC 2139UNDER the Property Relationships Act 1976IN THE MATTER OF the Estate of ELIZABETHPARETUARANGI ORMSBYBETWEEN JACQUELINE ANNE VAN SELM ANDPUAWAI ORMSBY AS TRUSTEES OFTHE ESTATE OF JACK ORMSBYAppellantsAND JAKE VAN SELM AS TRUSTEE OFTHE ESTATE OF ELIZABETHPARETUARANGI ORMSBYFirst RespondentALAN ORMSBYSecond RespondentHearing: On the papersJudgment: 4 September 2015COSTS JUDGMENT OF DUFFY JThis judgment was delivered by me on 4 September 2015 at 2.00 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Norris Ward McKinnon, HamiltonKoning Webster Lawyers, Papamoa[1] On 1 April 2015 I delivered a judgment1 in which I found in summary thatthere was no appealable error regarding the Family Court's decision to award coststo the second respondent on a 3C basis.2 However, I did find that there may be good grounds for reducing the quantum of the costs.3 Accordingly, I gave the parties the opportunity to file submissions on whether the category 3C quantum should be discounted.[2] The parties have taken the opportunity to file further material on the question of the quantum of the costs award in the Family Court.[3] The appellants have filed a memorandum and a supporting affidavit from Gillian Spry, the solicitor who has acted for the estate of Jack Ormsby since the proceedings were first issued.[4] Ms Spry deposes that the time records of the firm of solicitors which acted for the appellants were not particularised to the extent that she could point to entries specifically identifying work spent on the subject on which the second respondent made a late concession in the appellants' favour (the Fonterra shares). However, herbest estimate of costs that should be allocated to the work required in relation to the Fonterra shares was $5,000 plus GST. She says that there were no specific disbursements relating to that subject.[5] The second respondent has had an opportunity to contradict the appellants'submission and evidence in support. He points to the lack of specificity in the time records and contends that what is recorded relates to separate circumstances involving the Fonterra shares.[6] However, Ms Spry has explained the lack of specificity in the time records. I accept her explanation. The fact that specific records identifying the Fonterra shares as a stand-alone issue were not made does not necessarily mean that little or no work1 Van Selm v Van Selm [2015] NZHC 6412 At [64].3 At [65].was spent on the subject. Ms Spry's explanation is reasonable, and I have no reasonto disbelieve it. Further I consider that the concession reveals a measure of success on the part of the appellants, which given that it was made so close to the trial should be reflected in some adjustment to the costs award that was made in the Family Court.[7] Accordingly, I am satisfied that the costs awarded in the Family Court should be reduced by $5,000 plus GST.[8] It follows that the appellants have had some limited success in their appeal, which merits recognition when it comes to the question of costs on the appeal[9] The appellants argued that costs should lie where they fall. The second respondent points to the success that it enjoyed and seeks costs at category 2B.[10] This is not a case where each opposing party has enjoyed an equal or almost equal measure of success. Accordingly, I consider that the second respondent is entitled to an award of some costs. Ordinarily an award of scale costs would follow. However, here I consider some adjustment is necessary to reflect the limited success that the appellants enjoyed.[11] The second respondent seeks costs on the appeal to this Court on a 2B basis plus disbursements to be fixed by the Registrar. I consider as a starting point that he is entitled to an award of costs on a 2B basis, but that there should then be someadjustment to reflect the appellants' success. I consider that this can beaccomplished by discounting the 2B costs awards on the appeal by 10%.Result[12] The 3C costs awarded in the Family Court are reduced by $5000 plus GST.[13] The second respondent is entitled to an award of costs at category 2B less 10% on this appeal.[14] The second respondent is entitled to reasonable disbursements as fixed by the Registrar.